Strong v. Wesley Hospital ( 1907 )

Mb. Justice Adams

delivered the opinion of the court.

This is an appeal rendered by the Circuit Court sitting in chancery, and the errors assigned necessarily relate solely to that decree. Therefore, the question whether the law cgurt did or did not err in denying appellee’s motions to amend the record, by adding thereto a prayer for and allowance of an appeal, etc., is not before us for decision, although the question whether the law court had jurisdiction to so amend the record, on sufficient evidence and a proper showing, is involved in the consideration of the case. That he had such jurisdiction is admitted by counsel for appellee on page twenty-three of their printed argument, and is, as we think, abundantly settled by the decisions of the Supreme Court in the following cases: Gillett v. Booth, 95 Ill. 183; Church v. English, 81 ib. 442; Spellmyer v. Gaff, 112 ib. 29; Gebbie v. Mooney, 121 ib. 255, 258; People v. Anthony, 129 ib. 218; C. M. & St. P. Ry. Co. v. Walsh, 150 Ill. 607, 610; Culver v. Cougle, 165 ib. 417, 422.

Therefore, the law court having had full power to amend the record as moved by appellee, on a proper showing, appellee had a full, adequate remedy at law. Also, if it is appellee’s contention that the law court erred in making an order denying its motion to amend the record, it has a remedy by writ of error to have that order reversed. It preserved, as appears from the record before us, a bill of exceptions to the order denying its motion.

Appellee, having a full, adequate and complete remedy at law, cannot, in such case as the present, resort to a court of equity. It is not claimed by appellee’s counsel that the omission, which is alleged to have occurred, by the misprision of the clerk, was induced by any fraud, trick or device of appellant or any of his attorneys, and the record shows the contrary.

In Fisher v. Sievers, 65 Ill. 99, a bill was filed alleging the recovery by the complainant of a judgment against the defendant for $125, and that the record of the judgment was destroyed, and praying that the judgment be made and declared a decree of the Circuit Court, and that the defendant be decreed to pay the same. The Circuit Court granted the relief prayed; but the Supreme Court reversed the decree, saying., among other things: “Besides there was a remedy at law, by motion in the court in which the judgment was rendered, to shpply the record.” See, also, Clingman v. Hopkie, 78 Ill. 152.

The decree appealed from is extraordinary, and, as we think, unprecedented. No precedent or authority has been cited in support of it, nor do we know of any. Counsel for appellee say in their printed argument: “The object of this bill is to correct and amend the record in the law court, so as to show what actually took place the day the judgment was entered.” This statement corresponds with the specific prayer of the bill. Yet the court, by its decree, does not amend the record of the law court in any way, but decrees that unless appellant will consent to an amendment of the record of the law court, such as appellee prays, appellant will be perpetually enjoined from enforcing or collecting his judgment against appellee. Concisely stated, the court says to appellant, your judgment, henceforth, shall be a nullity, and as if vacated, unless you will consent to the amendment prayed by the appellee. The decree seems to proceed on the theory that the court was powerless to amend the record, as prayed, on the evidence, and on the further theory that appellant had no right to oppose the amendment prayed. It is not claimed, and there is no evidence, that the judgment against appellee was fraudulently recovered, or that there was not a fair trial, in all respects, before the court and jury. Such being the case, it was appellee’s legal right to stand on the record as it is, and to oppose its amendment by all legal and proper means, and the court was legally powerless to prevent his so doing, or to force his consent to an amendment, which, as we think, the court could not properly decree for two reasons: first, because a court of equity cannot properly maintain the bill, there being a full, adequate and complete remedy at law; and, second, because the evidence is wholly insufficient to warrant an amendment of the record. There is no note, minute or memorial paper showing, or tending in the least to show, that there was any appeal prayed or allowed, or time given to file an appeal bond or bill of exceptions, and it is not claimed that there is. The prayer for and allowance of an appeal is a matter of substance (Culver v. Cougle, 165 Ill. 417, 421; Towne v. Howieson, 175 ib. 85), and could only be allowed at a term subsequent to that at which the judgment was rendered “from some minute or memorial paper from which it could be determined what the order made by the court really was.” Towne v. Howieson, 175 Ill. 85, 87. The following cases are to the same effect: Gebbie v. Mooney, 121 Ill. 255, 258; Frew v. Danforth, 126 ib. 242; Culver v. Cougle, 165 ib. 417, 422.

In the present case it appears that neither the judge who presided in the law court, nor his minute clerk, nor any of the attorneys who were present when the judgment was rendered, except Mr. Jones, recollects any such order as appellee claims was made. Mr. Jones’ entry in his private docket is not a minute or memorial paper within the meaning of the law. In Hubbard v. The People, 197 Ill. 15, 18, it is held that an amendment must “be based on some official or quasi official note or memorandum or memorial pape.r remaining in the files of the case, or upon the records of the court.” The court also say: “The memorial paper or minute, by which a record may be amended, must be made and preserved as part of the record, pursuant to law. A private memorandum of a witness is not sufficient.”

The rule, in this respect, is the same in chancery as at law. Culver v. Cougle and Towne v. Howieson, cited supra; Tosetti Brewing Co. v. Koehler, 200 Ill. 369, 373.

It thus appears that the court, by its decree, attempted to accomplish indirectly, and by a species of duress, that which it could not do directly, namely, to bring about an amendment of the record of the law court, by forcing appellant to surrender his right in the premises, and consent to the amendment. Neither the appeal bond nor bill of exceptions in the law case can be deemed a record, in view of the absence from the record of a prayer for and allowance of an appeal and an order fixing time for filing bond and bill of exceptions, and neither of them is a minute, note, memorandum, or memorial paper snch as defined in Hubbard v. The People, supra, from which it can be determined whether any order not appearing; in the record was actually made. If, as the evidence tends to prove, appellant’s counsel assented to the correctness of the bill of exceptions and the sufficiency of the appeal bond, this does not obviate the difficulty of the absence of any minute or memorial paper.

Our conclusion is that the bill cannot be maintained. The decree will be reversed and the cause remanded, with directions to dismiss the bill for want of equity.

Reversed and remanded with directions.